AuthorTitleCitationSummaryYearKeyTerm
Allen R. Kamp The Birthright Citizenship Controversy: a Study of Conservative Substance and Rhetoric 18 Texas Hispanic Journal of Law and Policy 49 (Fall 2012) I. American Birthright Citizenship: A History. 51 A. Understanding of American Citizenship before Dred Scott. 52 B. Citizenship After Dred Scott. 53 II. The Conservative Arguments Against Birthright Citizenship Are Without Foundation and Violate the Conservative Canons of Interpretation. 59 A. The United States, as Sovereign, Must Consent to... 2012 Yes
Eric Foner The Supreme Court and the History of Reconstruction--and Vice-versa 112 Columbia Law Review 1585 (November, 2012) Beginning in the 1930s, Reconstruction historiography underwent a dramatic change. Early-twentieth-century historians of Reconstruction viewed aggressive federal intervention to protect the civil rights of freed slaves as a mistake, and they celebrated the Compromise of 1877 and the subsequent retreat from Reconstruction. These historians also... 2012  
Richard M. Re and Christopher M. Re Voting and Vice: Criminal Disenfranchisement and the Reconstruction Amendments 121 Yale Law Journal 1584 (May, 2012) The Reconstruction Amendments are justly celebrated for transforming millions of recent slaves into voting citizens. Yet this legacy of egalitarian enfranchisement had a flip side. In arguing that voting laws should not discriminate on the basis of morally insignificant statuses, such as race, supporters of the Reconstruction Amendments emphasized... 2012  
Daniel A. Farber A Fatal Loss of Balance: Dred Scott Revisited 39 Pepperdine Law Review 13 (December, 2011) I. Introduction II. Dred Scott in Historical Context A. Slavery and Ante Bellum Legal Disputes B. The Supreme Court's Intervention in Dred Scott III. Dred Scott and Legal Doctrine A. Citizenship, Race and the Constitution B. Narrow Reading of the Enumerated Powers C. Constitutional Protection for Property Rights IV. Evaluating Dred Scott A.... 2011  
Peter J. Spiro A New International Law of Citizenship 105 American Journal of International Law 694 (October, 2011) Will international law colonize the last bastion of sovereign discretion? As a matter of traditional doctrine, international law has had little to say about the citizenship practices of states and the terms on which states determine the boundaries of their memberships. Through much of the Westphalian era, states have been essentially unconstrained... 2011  
Peter J. Spiro A NEW INTERNATIONAL LAW OF CITIZENSHIP 105 American Journal of International Law 694 (October, 2011) Will international law colonize the last bastion of sovereign discretion? As a matter of traditional doctrine, international law has had little to say about the citizenship practices of states and the terms on which states determine the boundaries of their memberships. Through much of the Westphalian era, states have been essentially unconstrained... 2011  
Keith Cunningham-Parmeter Alien Language: Immigration Metaphors and the Jurisprudence of Otherness 79 Fordham Law Review 1545 (March, 2011) Metaphors tell the story of immigration law. Throughout its immigration jurisprudence, the U.S. Supreme Court has employed rich metaphoric language to describe immigrants attacking nations and aliens flooding communities. This Article applies research in cognitive linguistics to critically evaluate the metaphoric construction of immigrants in the... 2011  
Jeffrey L. Gower As Dumb as We Wanna Be: U.s. H1-b Visa Policy and the "Brain Blocking" of Asian Technology Professionals 12 Rutgers Race & the Law Review 243 (2011) American business interests face increasing difficulties as they attempt to compete in global technology-based industries. As the educational system in the U.S. is now producing fewer trained technology workers, many firms are looking to recruit professionals from foreign countries such as China and other Asian countries with an abundance of... 2011  
Matthew Ing Birthright Citizenship, Illegal Aliens, and the Original Meaning of the Citizenship Clause 45 Akron Law Review 719 (2011-2012) I. Introduction. 720 II. The Citizenship Clause in Context. 725 III. Indians, Aliens, and the Original Meaning of Subject to the jurisdiction thereof. 729 A. Federal Indian Law and the Original Meaning of Jurisdiction. 730 B. Original Expected Applications as a Test Suite of Original Meaning. 735 C. The Citizenship Clause During Ratification.... 2011 Yes
Nick Petree Born in the Usa: an All-american View of Birthright Citizenship and International Human Rights 34 Houston Journal of International Law 147 (Fall 2011) I. INTRODUCTION. 148 II. IMMIGRATION AND CITIZENSHIP IN THE UNITED STATES. 151 A. History of Immigration. 151 B. Citizenship. 153 III. THE HISTORY AND RIGHTS UNDERLYING THE FOURTEENTH AMENDMENT. 159 A. Debate Over the Meaning. 159 B. The Historical Context of the Fourteenth Amendment. 163 C. Conflict Between the Purpose of the Fourteenth Amendment... 2011 Yes
Harvey Gee Chasing the Dragon:the Forgotten Story of Wong Sun V. United States 17 Michigan Journal of Race and Law 159 (Fall 2011) Criminal Procedure Stories, edited by Harvard Law School Professor of Law Carol S. Steiker, is an insightful, multi-authored anthology providing the stories behind some of the most important criminal procedure cases in American jurisprudence. The collection offers discerning legal analyses and narratives told by leading criminal law scholars. The... 2011  
Venus Booth Citizenship as a Birthright: What the United States Can Learn from Failed Policies in the United Kingdom and Ireland 28 Arizona Journal of International and Comparative Law 693 (Fall, 2011) The United States is one of the few countries that continue to grant birthright citizenship to any person born within its boundaries. The right derives from the Fourteenth Amendment of the U.S. Constitution, which states, [A]ll persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United... 2011 Yes
Susan K. Serrano Collective Memory and the Persistence of Injustice: from Hawai'i's Plantations to Congress--puerto Ricans' Claims to Membership in the Polity 20 Southern California Review of Law & Social Justice 353 (Summer 2011) At the dawn of the twentieth century--after the United States' successful takeover of Puerto Rico, Hawaii, the Philippines, and Guam--burgeoning American agribusiness sought to control immigrant workers from around the world. In particular, it targeted recalcitrant Puerto Ricans organizing mass resistance to oppressive working and living... 2011  
Allan Erbsen Constitutional Spaces 95 Minnesota Law Review 1168 (April, 2011) I. The Land of the Law: The Constitution's Ad Hoc Typology of Physical Spaces. 1175 A. The Land . 1179 B. The United States . 1186 C. States . 1197 D. The District and the Seat . 1208 E. districts . 1215 F. places and territories . 1221 G. Territory and Property . 1224 H. possessions . 1232 I. Places . 1234 J. The high... 2011  
Dr. John Eastman and Professor Ediberto Román Debate on Birthright Citizenship 6 FIU Law Review 293 (Spring, 2011) The following is the transcript from a debate between Dr. John Eastman and Professor Ediberto Román, and moderated by Dean of the Florida International University College of Law, Alex Acosta. This debate took place on February 24-25, 2011 as a part of the FIU Law Review's Symposium on immigration reform in the United States. Specifically, this... 2011 Yes
Dana Gayeski Give Me Your Tired, Your Poor, Your Legal: Why Efforts to Repeal Birthright Citizenship Are Unconstitutional and Un-american 21 Temple Political & Civil Rights Law Review 215 (Fall 2011) In April 2010, Arizona signed into law the toughest immigration enforcement legislation in the nation, recharging the national debate over illegal immigration and pushing it to the forefront of American politics. Though the most controversial provisions of the Arizona law, Senate Bill 1070 (SB1070), were enjoined by the federal government, Arizona... 2011 Yes
Dana Gayeski GIVE ME YOUR TIRED, YOUR POOR, YOUR LEGAL: WHY EFFORTS TO REPEAL BIRTHRIGHT CITIZENSHIP ARE UNCONSTITUTIONAL AND UN-AMERICAN 21 Temple Political & Civil Rights Law Review 215 (Fall 2011) In April 2010, Arizona signed into law the toughest immigration enforcement legislation in the nation, recharging the national debate over illegal immigration and pushing it to the forefront of American politics. Though the most controversial provisions of the Arizona law, Senate Bill 1070 (SB1070), were enjoined by the federal government, Arizona... 2011 Yes
D. Carolina Núñez Inside the Border, Outside the Law: Undocumented Immigrants and the Fourth Amendment 85 Southern California Law Review 85 (November, 2011) As states enact immigration-related laws requiring local law enforcement officers to identify and detain undocumented immigrants, the Fourth Amendment rights of aliens are becoming critically important. In United States v. Verdugo-Urquidez, a divided Supreme Court suggested that aliens in the United States do not have Fourth Amendment rights unless... 2011  
Carson Osberg Inter-american System 18 Human Rights Brief 64 (Spring, 2011) In November 2010, the Inter-American Court of Human Rights (Court) ruled against Panama in its first case addressing the vulnerability of irregular and undocumented migrants. The decision in Vélez Loor v. Panama came seven years after the Court issued an advisory opinion on the rights of undocumented migrants. The opinion concluded that all... 2011  
Linda C. McClain Involuntary Servitude, Public Accommodations Laws, and the Legacy of Heart of Atlanta Motel, Inc. V. United States 71 Maryland Law Review 83 (2011) In this Article, I look at two contrasting ways in which arguments about the Thirteenth Amendment's declaration that [n]either slavery nor involuntary servitude . . . shall exist within the United States featured in the enactment of Title II of the Civil Rights Act of 1964 and in Heart of Atlanta Motel, Inc. v. United States, the case in which... 2011  
Andrea Christina Nill Latinos and S.b. 1070: Demonization, Dehumanization, and Disenfranchisement 14 Harvard Latino Law Review 35 (Spring 2011) Last year, the Arizona state legislature approved the Support Our Law Enforcement and Safe Neighborhoods Act, or Arizona Senate Bill 1070 (S.B. 1070) as it is popularly known. The provisions of the Bill are explicitly intended to work together to discourage and deter the unlawful entry and presence of aliens. S.B. 1070 contains a series of... 2011  
Andrea Christina Nill LATINOS AND S.B. 1070: DEMONIZATION, DEHUMANIZATION, AND DISENFRANCHISEMENT 14 Harvard Latino Law Review 35 (Spring 2011) Last year, the Arizona state legislature approved the Support Our Law Enforcement and Safe Neighborhoods Act, or Arizona Senate Bill 1070 (S.B. 1070) as it is popularly known. The provisions of the Bill are explicitly intended to work together to discourage and deter the unlawful entry and presence of aliens. S.B. 1070 contains a series of... 2011  
Noga Firstenberg Marriage and Morality: Examining the International Marriage Broker Regulation Act 18 Asian American Law Journal 83 (2011) This Article examines the International Marriage Broker Regulation Act (IMBRA) through the lenses of race, gender, and the institution of marriage. Legal scholarship about IMBRA has been sparse since its enactment in 2006, however the Act merits further investigation. Created to protect noncitizen women intending to marry U.S. citizen men met... 2011  
Michael Grinthal Power With: Practice Models for Social Justice Lawyering 15 University of Pennsylvania Journal of Law and Social Change 25 (2011) Public interest lawyers seeking justice for marginalized groups cannot succeed by working alone. Meaningful social change occurs when marginalized and dispersed peoples unite and organize to take power into their own hands. Such groups benefit greatly by forming relationships with lawyers and including them in their organizing processes. However,... 2011  
Javier Perez Reasonably Suspicious of Being Mojado: the Legal Derogation of Latinos in Immigration Enforcement 17 Texas Hispanic Journal of Law and Policy 99 (Spring, 2011) C1-3Summary I. Introduction 100 II. The Legal Framework & Doctrinal Prejudice 104 A. [Un]Reasonableness of an Exception to the Fourth Amendment 104 B. Equal Protection as a Guardian for Fairness 109 C. A Comment on Non-Federal Enforcement 113 III. The Cultural Force of Immigration Status 114 IV. CONCLUSION 122 2011  
Angela Kim, Managing Editor THE GROWING MOVEMENT TO REDEFINE BIRTHRIGHT CITIZENSHIP AND THE FOURTEENTH AMENDMENT 25 Georgetown Immigration Law Journal 757 (Spring, 2011) Although the Fourteenth Amendment has historically been understood to convey citizenship to all persons born in the jurisdiction of the United States, also known as birthright citizenship, there has been a growing movement to redefine citizenship to limit this automatic citizenship to children of only documented citizens and legal residents.... 2011 Yes
Richard T. Middleton, IV The Operation of the Principle of Jus Soli and its Effect on Immigrant Inclusion into a National Identity: a Constitutional Analysis of the United States and the Dominican Republic 13 Rutgers Race & the Law Review 69 (Fall 2011) This paper explores how the framing of the principle jus soli affects racial and ethnic immigrant minority inclusion into citizenship and a national identity. In particular, I explore how the principle of jus soli, embedded in the United States Constitution, has been judicially interpreted to allow an expansive legal inclusion of racial and ethnic... 2011  
Richard T. Middleton, IV, Ph.D, JD THE OPERATION OF THE PRINCIPLE OF JUS SOLI AND ITS EFFECT ON IMMIGRANT INCLUSION INTO A NATIONAL IDENTITY: A CONSTITUTIONAL ANALYSIS OF THE UNITED STATES AND THE DOMINICAN REPUBLIC 13 Rutgers Race & the Law Review 69 (Fall 2011) This paper explores how the framing of the principle jus soli affects racial and ethnic immigrant minority inclusion into citizenship and a national identity. In particular, I explore how the principle of jus soli, embedded in the United States Constitution, has been judicially interpreted to allow an expansive legal inclusion of racial and ethnic... 2011  
Rose Cuison Villazor The Other Loving: Uncovering the Federal Government's Racial Regulation of Marriage 86 New York University Law Review 1361 (November, 2011) This Article seeks to fill a gap in legal history. The traditional narrative of the history of the American racial regulation of marriage typically focuses on state laws as the only sources of marriage inequality. Overlooked in the narrative are the ways in which the federal laws also restricted racially mixed marriages in the decades before 1967... 2011  
Michael A. Olivas The Political Efficacy of Plyler V. Doe: the Danger and the Discourse 45 U.C. Davis Law Review 1 (November, 2011) Stinky is one ugly robot, a raggedy contraption constructed of crudely painted, cheap plastic pipes pasted together with gobs of the foul-smelling glue that gave the monstrosity its name. Stinky's creators didn't look all that impressive, either--four teenage guys in baggy pants and sneakers, all of them illegal Mexican immigrants attending Carl... 2011  
Addie C. Rolnick The Promise of Mancari: Indian Political Rights as Racial Remedy 86 New York University Law Review 958 (October, 2011) In 1974, the Supreme Court declared that an Indian employment preference was based on a political rather than racial classification. The Court's framing of Indianness as a political matter and its positioning of political and racial as opposing concepts has defined the trajectory of federal Indian law and influenced common sense ideas about... 2011  
Marc D. Falkoff and Robert Knowles Bagram, Boumediene, and Limited Government 59 DePaul Law Review 851 (Spring 2010) The United States' prison at Bagram Airbase in Afghanistan will be the next front in the battle over the extraterritorial reach of the Constitution. Habeas litigation on behalf of Bagram detainees will soon establish whether the writ of habeas corpus extends beyond U.S. territory to active war zones, and it will also begin to refine the limits of... 2010  
William T. Han Beyond Presidential Eligibility: the Natural Born Citizen Clause as a Source of Birthright Citizenship 58 Drake Law Review 457 (Winter 2010) I. Introduction. 457 II. Existing Scholarship. 460 A. The Traditional Approach. 460 B. The Naturalized Born Approach. 464 C. The Interpretation Approach. 466 III. The Constitutional Minimum Approach. 466 A. The Inadequacies of Existing Approaches. 466 B. The Constitutional Minimum Approach. 470 C. Ascertaining the Constitutional Minimum. 470... 2010 Yes
Justin McDevitt BORN IN THE U.S.A.! YEAH, AND .? REVISITING BIRTHRIGHT CITIZENSHIP 16 Public Interest Law Reporter 53 (Fall, 2010) Some blast it as invasion by birth canal. Others defend it as bedrock Americanism. Whichever side of the fence (or the border) the calls come from, few topics stoke anger as readily as the policy of automatic birthright citizenship. Should the United States grant citizenship to all children born on U.S. soil, even the children of illegal... 2010 Yes
Mary De Ming Fan Citizenship Perception Strain in Cases of Crime and War: on Law and Intuition 2010 Michigan State Law Review 1 (Spring, 2010) Abstract. 1 Introduction. 2 I. The Perception of Citizenship. 6 A. Citizenship's Multitude of Meanings. 7 B. What Citizenship Looks Like: Categorical Cognition. 10 C. What Citizenship Feels Like: The Impact of Affect. 13 II. Citizenship Perception Strain in Crime and War. 16 A. The Contested Rights-Citizenship Linkage. 16 B. Rights-Citizenship in... 2010  
Margot K. Mendelson Constructing America: Mythmaking in U.s. Immigration Courts 119 Yale Law Journal 1012 (March, 2010) This Note argues that immigration courts have served and continue to serve as important sites for the perpetuation of national identity myths. By focusing on a subset of cases called cancellation of removal, I examine the functional criteria by which immigrants are granted exemption from deportation. Despite ostensibly neutral statutory... 2010  
Dale Rubin Corporate Personhood: How the Courts Have Employed Bogus Jurisprudence to Grant Corporations Constitutional Rights Intended for Individuals 28 Quinnipiac Law Review 523 (2010) There is no question that America is undergoing a crisis in governance. Special interests, usually operating through the corporate form, exert massive influence on our legislative bodies, both state and federal. During the recent Bush administration, Americans witnessed an unprecedented breakdown of the federal regulatory structure with a... 2010  
Dale E. Ho Dodging a Bullet: Mcdonald V. City of Chicago and the Limits of Progressive Originalism 19 William & Mary Bill of Rights Journal 369 (December, 2010) The Supreme Court's decision in last term's gun rights case, McDonald v. City of Chicago, punctured the conventional wisdom after District of Columbia v. Heller that we are all originalists now. Surprisingly, many progressive academics were disappointed. For progressive originalists, McDonald was a missed opportunity to overrule the... 2010  
Roger Clegg E Pluribus Unum Forgotten: Five Immigration Policy Mistakes Some Conservatives Make 23 Regent University Law Review 345 (2010-2011) This Article discusses five mistakes that some conservatives are currently making with respect to immigration policy. The following are the five mistakes: 1. Neglecting the importance of assimilation in the public debate about immigration, 2. Opposing birthright citizenship, 3. Supporting racial profiling, 4. Supporting state and local (versus... 2010 Yes
Rebecca E. Zietlow Patterns of Inequality -- Paradigms for Equality 45 Tulsa Law Review 863 (Summer 2010) Gender Equality: Dimensions of Women's Equal Citizenship (Linda McClain & Joanna Grossman eds., Cambridge U. Press 2009). Pp. 450. $94.99. Ayelet Shachar, The Birthright Lottery: Citizenship and Global Inequality (Harvard U. Press 2009). Pp. 273. $39.95. Deborah Hellman, When Is Discrimination Wrong? (Harvard U. Press 2008). Pp. 205. $41.50. One of... 2010 Yes
Steve D. Shadowen Personal Dignity, Equal Opportunity, and the Elimination of Legacy Preferences 21 George Mason University Civil Rights Law Journal 31 (Fall 2010) Students with the wrong ancestry are denied equal access to almost all elite colleges and universities in the United States, nearly 85% of which admit students based in substantial part on whether they are children or grandchildren of the school's alumni. These legacy preferences--de jure distinctions based directly on descent from highly educated... 2010  
Garrett Epps The Citizenship Clause: a "Legislative History" 60 American University Law Review 331 (December, 2010) Introduction: The Citizenship Clause and Human Migration. 332 I. Thinking About the Fourteenth Amendment. 341 II. The Framing of the Clause: Background and Debate. 349 III. Travels in Indian Country. 363 IV. The Intellectual Background of Nineteenth-Century Republican Citizenship. 372 V. Birthright Citizenship and Changed Circumstances. 382... 2010 Yes
Garrett Epps THE CITIZENSHIP CLAUSE: A "LEGISLATIVE HISTORY" 60 American University Law Review 331 (December, 2010) Introduction: The Citizenship Clause and Human Migration. 332 I. Thinking About the Fourteenth Amendment. 341 II. The Framing of the Clause: Background and Debate. 349 III. Travels in Indian Country. 363 IV. The Intellectual Background of Nineteenth-Century Republican Citizenship. 372 V. Birthright Citizenship and Changed Circumstances. 382... 2010 Yes
Deenesh Sohoni and Amin Vafa The Fight to Be American: Military Naturalization and Asian Citizenship 17 Asian American Law Journal 119 (2010) In 1862, Congress passed legislation granting foreigners serving in the U.S. military the right to expedited naturalization. Although driven by pragmatic concerns, military naturalization served as a powerful symbolic message: those willing to fight for the United States are worthy of its citizenship. At the same time, military naturalization... 2010  
Brook Thomas The Legal and Literary Complexities of U.s. Citizenship Around 1900 22 Law and Literature 307 (Summer, 2010) Abstract. One year before he argued Homer Plessy's case before the Supreme Court, Albion W. Tourgée wrote, Citizenship in the abstract is the most comprehensive, complex, difficult and important of human relations, and American citizenship is especially complex in its character and relations. This essay explores those complexities by... 2010  
Keith Aoki and John Shuford Welcome to Amerizona--immigrants Out!: Assessing "Dystopian Dreams" and "Usable Futures" of Immigration Reform, and Considering Whether "Immigration Regionalism" Is an Idea Whose Time Has Come 38 Fordham Urban Law Journal 1 (November, 2010) In this essay, we introduce the heuristics of dystopian dream and usable future to assess competing visions for immigration reform. We apply these heuristics to potential changes to the U.S. immigration system and immigration federalism as reflected in legislative and law enforcement activities, policy proposals, speeches, and scholarship. We... 2010  
Rogers M. Smith BIRTHRIGHT CITIZENSHIP AND THE FOURTEENTH AMENDMENT IN 1868 AND 2008 11 University of Pennsylvania Journal of Constitutional Law 1329 (July, 2009) The framers of the Fourteenth Amendment sought to override the denial of jus soli birthright U.S. citizenship to African Americans in Dred Scott v. Sandford while at the same time excluding from such birthright citizenship all indigenous people who remained members of their native tribes. They struggled but ultimately failed to find language that... 2009 Yes
John R. Hein Born in the U.s.a., but Not Natural Born: How Congressional Territorial Policy Bars Native-born Puerto Ricans from the Presidency 11 University of Pennsylvania Journal of Constitutional Law 423 (January, 2009) No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States.... 2009  
Courtney Megan Cahill Celebrating the Differences That Could Make a Difference: United States V. Virginia and a New Vision of Sexual Equality 70 Ohio State Law Journal 943 (2009) I have taught Sexuality and the Law for the past five years, and each year when I begin the marriage section in that course my students, who as veterans of Constitutional Law are well versed in the right to marry cases, almost uniformly expect to read Loving v. Virginia. And why should I be surprised? That canonical marriage case struck down... 2009  
Steve D. Shadowen , Sozi P. Tulante and Shara L. Alpern No Distinctions Except Those Which Merit Originates: the Unlawfulness of Legacy Preferences in Public and Private Universities 49 Santa Clara Law Review 51 (2009) Legacy preferences in college admissions infringe fundamental American values. Preferring the applications of alumni children gives them a substantial benefit based not on merit, but lineage--on the identity, status, or accomplishments of their parents. Inherited preferences for publicly-available goods are appropriate only in status-based, feudal... 2009  
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